Dan Rozansky recently spoke to ALM about Canada-based music streaming platform Musi's lawsuit against Apple over the removal of its app from the App Store due to copyright infringement concerns. While Musi has accused Apple of participating in a “backchannel scheme with music-industry conglomerates bent on Musi's destruction,” a California federal court recently rejected the platform's request for a preliminary injunction.
Dan explains to ALM that this case could establish a precedent for the rights of companies that provide app stores to remove apps at their discretion. He draws parallels to the landmark 2001 U.S. Court of Appeals for the Ninth Circuit ruling in A&M Records v. Napster, which established a paradigm for intellectual property law online.
“It's reminiscent of that. So I think people are watching this case,” Dan tells ALM.
Dan notes that while Apple is not held liable for others' infringing conduct under the Digital Millennium Copyright Act, it is required to reasonably monitor the behavior of apps in its store.
“Apple's position is: we took reasonable steps as prudent businesspeople to remove this app while there's a dispute going on between YouTube and Musi and other stakeholders regarding whether Musi's conduct is legal,” Dan explains. “Apple’s saying, ‘It's not our fight. We have a good reason to take it down. And that's what we've done.’”
In a follow-up article, Dan later spoke with ALM again about the judge’s ruling denying Musi’s motion to force Apple to reinstate its app on the app store. He explains that while the ruling does not necessarily mean that app stores are now “completely arbitrary,” it does require app developers to demonstrate that Apple “really did something outrageous” by removing their apps.
“The court said, ‘Well, you can't use the implied covenant of good faith and fair dealing to imply contract terms where there's already something that addresses it,’” Dan tells ALM.
“Here, the fact was that the Apple store agreement said that they could cease downloading the app for no reason at all, with or without cause. And based on that express language, it didn't matter whether Apple was acting in good faith or bad faith,” he continues.
He adds that given the precedent set by A&M Records v. Napster, this ruling is understandable.
“I think that the court felt a little bit more comfortable not issuing the injunction here because of the fact that Musi—it could be argued—was a bad actor based on complaints against them,” he concludes.
